George Robinson v. Gus’s Kitchen and Bath Limited, and Ministry of Labour
1469-99-ES George Robinson, Applicant v. Gus’s Kitchen and Bath Limited, and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 21103572
BEFORE: David A. McKee, Vice-Chair.
DECISION OF THE BOARD; July 4, 2000
Decision
This is an Application for Review of a decision of an Employment Standards Officer pursuant to section 67 of the Employment Standards Act, RSO 1990, ch. E-14 as amended (the “ESA”). The Ministry has written requesting the Board to order the applicant to produce particulars of his application in advance of the hearing set for October 6, 2000 in this matter. The request certainly seems justified. The officer has set out in detail the basis of her calculations of the monies owed to the applicant. It is very clear how each penny of her decision is calculated. Since the applicant has filed an application for review, he presumably has some reason for disputing these figures. An order to provide particulars would be appropriate in this case.
However, the Board lacks the statutory authority to make such a pre-hearing order. Section 68(10) does not seem adequate, particularly when contrasted with section 111(2) (b) of the Labour Relations Act, 1995, S.O. 1995, ch.1 (the “LRA”). The obligation to prove that the officer was in error is on the applicant. If the applicant is simply expecting someone else to go through the employer’s records and come up with a more satisfactory result, he will undoubtedly be disappointed. Indeed, given the lack of particulars in the application, it is likely that, if he expects to be able to review the employer’s records on the day of hearing himself, he may well find that such records are not available at that time. If he has some evidence in his possession, it is unlikely that he will be able to “surprise” anyone with it on the date set for hearing, as an adjournment will likely be granted to the Ministry or the employer to deal with any new evidence presented at that time. Alternatively, the Board may decide that the application as presently framed does not disclose any facts and may as a consequence refuse to permit the applicant to lead any evidence not previously particularized.
The applicant is encouraged to set out in writing his position as to what his former employer owes him, and where he says that the calculations of the officer are wrong. If he fails to do so, he runs the risk that his application will be delayed or dismissed at the hearing.
“David A. McKee”
for the Board